2013 Gohap563936 Compensation, etc.

A

1. B

2.C

3.D

4.E

5.F

6.G

November 19, 2014

December 19, 2014

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendants jointly and severally pay to the plaintiff 172,120,000 won with 20% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. On July 2, 2007, H Housing Association (hereinafter referred to as the “instant association”) entered into a contract with the I Co., Ltd. (hereinafter referred to as “T”) on a new apartment project to be implemented by the JJ in Dongjak-gu Seoul (hereinafter referred to as the “instant apartment project”) on behalf of the I to implement the implementation of the instant apartment project entrusted by the instant association, and its main contents are as follows. The instant association obtained authorization from the head of Dongjak-gu Office of Government Administration on January 25, 2008 for the establishment of a housing association.

Article 2 (Status of Parties) (1) The Association of this case shall delegate its duties under Article 4 to I, and I shall faithfully perform the duties delegated by the Association of this case. Article 4 (Scope of Duties) (1) The Association of this case shall perform the duties specified in the following subparagraphs as the execution agent of this project and delegated by the Association of this case.

B. Around March 2008, Defendant D, a licensed real estate agent operating K real estate, heard information related to the transaction of the right to sell the instant Art from L, and around that time, informed Defendant B, an employee of Defendant C, a licensed real estate agent, of the said information.

C. In the case of Defendant B’s investment in the sale right of the apartment of this case in March 2008 to the Plaintiff, the profit

In order to make an investment in the right to sell apartment units of this case, the Plaintiff wired the total amount of KRW 15 million to Defendant D’s account on March 29, 2008, and KRW 13 million on March 31, 2008, and Defendant D wired the amount of KRW 15 million to L on March 31, 2008.

D. On April 11, 2008, the Plaintiff met Defendant E, a licensed real estate agent entrusted with the authority to conclude a contract related to the right to sell the instant apartment, with Defendant B, D, and L, and in that place, he heard the explanation of the contract related to the right to sell the instant apartment from Defendant E, and then entered into a contract with the name of the Plaintiff, the instant association, and the instant association joining the partnership (hereinafter “instant contract”). The main contents of the instant contract are as follows. Meanwhile, at the time of entering into the instant contract, I’s representative director was attached to the Defendant, and the president of the instant association was the Defendant G.

Article 3 [Qualifications for Members] The plaintiff shall maintain the qualification of the members of the housing association prescribed by the Housing Act (including the Enforcement Decree of the same Act, the Enforcement Rule, and other ordinances) on November 26, 2007 from the date of application for the establishment authorization of the association of this case to the date of completion and occupancy.Article 4 / [Liability for Members] The plaintiff shall bear the contributions as follows: (1) The members' "determined contributions" shall bear the following contributions:

The total amount of the sale price for flat-type 85m2, 561,240,000

Schedule of Payment of Contribution

69,624,00 on the date of division (cost) of non-fixed loan agreement, 69,624,00 on April 109, 2010, 248,000 on the deposit, 382, 368,00 in total,561,240,000.

Article 6 (General Parcelling-Out) In principle, the project shall be supplied to the members who join the housing association, but it may be converted to a general sale in accordance with the decision of I and the association of this case in order to improve the balance of the project due to a delay in the recruitment of members during the project promotion, or a fixed supply price.Article 9 (Withdrawal of Members) 1) When the plaintiff intends to withdraw from the association of this case, he shall apply for a withdrawal from the association of this case two weeks before the association, and he may withdraw from the association of this case. 2) If the plaintiff intends to withdraw from the association of this case and make a refund, he shall only refund the principal of the shares paid by the plaintiff among the shares paid by the new members who succeed to the rights and obligations of the plaintiff, and the business promotion expenses shall not be refunded.Article 12 (Procedures for Occupancy)

E. The Plaintiff transferred KRW 154,624,00 to the Defendant B’s account at that place, and the Defendant B immediately.

The above KRW 154,624,00, face value of KRW 54,624,00, KRW 1,624,000, KRW 9 of the number of checks with face value of KRW 54,624,00, KRW 9 of the number of checks with face value of KRW 10,000, KRW 100,000, issued all the above checks

F. The Plaintiff, on the same day, remitted 2.5 million won to Defendant B as the introduction cost of the instant contract.

had been.

【Non-contentious facts, Gap’s evidence Nos. 1 through 5, 7 through 9 (including provisional number in the case of provisional number; hereinafter the same shall apply), Eul’s evidence Nos. 3 through 5, and the court’s factual inquiry into the instant association, the result of Defendant B’s personal examination, and the purport of the entire pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) The instant contract is a contract under which the Plaintiff acquired the status of an existing member of the association and the right to sell the apartment of this case from the existing member. At the time, the Plaintiff did not have the Plaintiff’s membership and right to sell the apartment of this case, and the Plaintiff did not meet the qualification requirements for becoming a member of the association of this case.

Defendant B, D, E, F, and G (hereinafter referred to as “Defendant B, etc.”) knew of the aforementioned circumstances, the Plaintiff had the Plaintiff acquire the status of union members and the right of sale from the non-member of the Plaintiff, and had the Plaintiff enter into the instant contract without delivering the transfer contract and the transfer contract necessary to exercise their rights to the instant association. Accordingly, the Plaintiff incurred losses for which the Plaintiff did not acquire any rights even though he paid the sum of KRW 172,120,000 to Defendant B, etc. in accordance with the instant contract.

Therefore, Defendant B, etc., the joint tortfeasor due to the above deception, and Defendant C, the employer of Defendant B, jointly and severally, are liable to pay the Plaintiff KRW 172,120,000 as compensation for damages caused by the above deception, and damages for delay.

2) A person engaged in the real estate brokerage business has a duty of care to investigate the defects of real estate for the purpose of brokerage, the authenticity, etc. of the right holder, and verify them.

Defendant B, D, and E, who are engaged in the real estate brokerage business, mediated the transfer of the membership status and the right to sell in lots. Defendant F, and G, in ordering or participating in the above brokerage act, Defendant F, etc. did not verify the Plaintiff’s membership status and the existence of the union member to transfer the right to sell in lots, the contents and status of the right to sell in lots held by the union of this case. The Plaintiff did not verify whether the Plaintiff satisfied the qualification requirements for the union of this case. The Plaintiff breached the duty of care to compensate the Plaintiff for the act of brokerage, such as not preparing and delivering the transfer contract and the right and obligation succession contract necessary for the acquisition of the membership status and exercise of the right to sell in lots. Accordingly, the Plaintiff sustained damages for which the Plaintiff did not acquire any right despite paying the sum of KRW 172,120,000 to Defendant B, etc. according to the contract of this case.

Therefore, Defendant B, etc., the joint tortfeasor, and Defendant C, the employer of Defendant B, are jointly and severally liable to pay the Plaintiff KRW 172,120,000 as compensation for damages incurred by the said unlawful act, and damages for delay thereof.

B. Defendant B and D’s assertion

1) Defendant B and D recommended the Plaintiff to make an investment in relation to the transfer of 19 units of the instant apartment units owned by I, and directly concluding the instant contract.

There was no participation, and there was no fact that the plaintiff made a deception claimed by the plaintiff.

2) The right to sell the apartment of this case’s membership does not constitute an object of brokerage as provided by the Business Affairs of the former Licensed Real Estate Agents and Report of Real Estate Transactions Act (amended by Act No. 12374, Jan. 28, 2014; hereinafter “Licensed Real Estate Agent Act”).

Therefore, even if Defendant B and D recommended the Plaintiff to conclude the instant contract and received the introduction fee from the Plaintiff, it cannot be deemed as a brokerage act stipulated in the Licensed Real Estate Agent Act, and thus, it cannot be deemed that Defendant B and D had a duty of care premised on the brokerage act.

3. Determination

A. As to the instant contract

In addition to the above basic facts, the plaintiff takes over the status of the union member and the right to sell the apartment house of this case from the existing union member of this case by taking account of the following circumstances that can be acknowledged by the whole purport of the pleadings in each statement in Gap evidence Nos. 4 through 6, 10, and 10. However, it is reasonable to conclude the contract of this case in the form of joining the union member on behalf of the union member, not by entering into a contract for transfer or takeover with the union member, but by paying a premium of 100 million won to the union member.

1) It appears that the sale of the apartment of this case is limited to the sale of the apartment of this case to the members of the association of this case and the sale of the apartment of this case to the general public who are not the members of the association of this case. However, the general sale of the apartment of this case can only be conducted after the approval of the project plan of the competent Gu office for the new apartment bamboo project of this case, and the sale of the apartment of this case to the association of this case can be conducted only when 20 or more houses remaining after

In addition, in the case of the contract of this case, the general sale is stipulated in the name of I and I (Article 6(2)), and the contract of this case is excluded from the construction work.

2) At the time of the instant contract, the Plaintiff paid KRW 100 million in addition to the down payment of KRW 69,624,00,000 for the sales price of the association members as a premium upon the transfer of the sales right, and the said amount appears to have been paid to the union members who transferred the status of the association members. However, if the instant contract is a mere membership agreement or a general sales right sales contract, there seems to be no reason to additionally pay the premium of KRW 100

3) Although the signature column of the party at the end of the contract of this case stated that “the contract of this case is irrelevant to the qualification and obligations of the Plaintiff as a member of the instant case,” it cannot be deemed that the contract of this case is a contract of this case solely based on the above content, in light of the aforementioned circumstances and the name of the contract of this case, the qualification of the member of the instant association (Article 3), the contributions of the association members (Article 4), and the withdrawal and refund of the association members (Article 9).

B. As to the assertion of tort caused by deception

1) As to Defendant E

A) As seen earlier, the Plaintiff entered into the instant contract with Defendant E delegated by the former members of the instant association in order to obtain both the status and the right to sell shares of the association members. However, there is no evidence to prove that Defendant E knew that there was a partner who would transfer the status and the right to sell shares of the association members, as alleged by the Plaintiff at the time of the instant contract, even though there was no partner who would transfer the status and the right to sell shares of the association members.

Although Defendant E did not deliver to the Plaintiff a transfer contract and a contract for succession to rights and obligations attached with the certificate of personal seal impression of both Do Governors regarding the transfer of the status of the Plaintiff, as seen earlier, the Plaintiff acquired the status of the Plaintiff as a union member and the right to sell shares as seen earlier, but the Plaintiff entered into the instant contract in the form of joining the instant association on behalf of the union member instead of entering into the transfer and acquisition contract with the existing union member, and thus, even if it did not receive the transfer contract and the contract for succession to rights and obligations, it cannot be deemed that the opportunity to obtain the status of the union member and the right to sell shares is lost in accordance with the instant contract. Thus, it cannot be deemed that

B) The deception as a requirement for fraud refers to any affirmative or passive act that has a good faith and good faith to be observed by each other in a property transaction. The deception by such passive act refers to a person subject to the duty of disclosure who is aware that he/she was involved in a mistake in a certain fact and did not notify the other party thereof (see, e.g., Supreme Court Decision 2007Do967, Apr. 12, 2007).

In full view of the purport of the entire arguments in Gap evidence No. 6, the fact that the regulations of the association of this case set forth that the plaintiff resided in Seoul Special Metropolitan City for not less than six months as of the date of application for authorization to establish the association (Article 8(b)), and the plaintiff continued to reside in Jin-si from February 4, 1974 to July 15, 2014.

In light of the above, the Plaintiff’s qualification requirements are likely to affect the validity of the instant contract, or cause risks to the Plaintiff to secure rights pursuant to the instant contract, and if the Plaintiff was notified of such circumstances at the time of entering into the contract, it should be deemed that the Plaintiff would have not entered into the instant contract, in light of the empirical rule. Thus, the Plaintiff’s authority to enter into the

Before entering into the instant contract, Defendant E ought to be deemed to have a duty under the good faith principle to inform the Plaintiff of the existence of the requirements for membership of the instant association.

However, there is no evidence to support that Defendant E did not notify the Plaintiff of the requirement for membership of the instant association, even though it was known that the Plaintiff did not meet the requirements for membership of the instant association. Therefore, even if Defendant E did not notify the Plaintiff of the requirement for membership of the instant association, it cannot be deemed as a deception by omission.

C) Therefore, the Plaintiff’s above assertion, which was premised on Defendant E’s deception, is without merit without further review.

2) As to Defendant B, C, and D

There is no evidence to prove that Defendant B and D, at the time of the instant contract, did not have any partner who would transfer the status of the member at the time of the instant contract, or that the Plaintiff knew that the Plaintiff did not meet the requirements for membership, by deceiving the Plaintiff.

In addition, even though the transferor's certificate of personal seal impression attached to the transfer contract and the transfer contract are different from the duty to provide it to the plaintiff, it is difficult to view that there is a duty to provide it to the defendant B and D. Thus, even if the plaintiff failed to receive the above transfer contract and the transfer contract, it cannot be viewed as the act of deception by the defendant B and D.

Therefore, the plaintiff's assertion against the defendant B, C, and D based on the deception of the defendant B, and D is without merit.

3) As to the assertion on Defendant F and G

The title holder of the contract of this case may cause the president of the association of the plaintiff and the defendant F as the representative director.

The facts of this case, which are the association of this case, are as seen earlier, but according to the above facts, only Defendant F and G did not directly participate in the process of concluding the contract of this case, and there is no evidence to acknowledge that Defendant F and G had committed deception as alleged by the Plaintiff during the process of concluding the contract of this case. Thus, the Plaintiff’s assertion about Defendant F and G is without merit without any need to further examine.

C. As to the assertion of tort due to violation

1) Relevant legal principles

Article 2 of the Licensed Real Estate Agents Act provides that brokerage means mediation between the parties to purchase and sell, exchange, lease, and other rights concerning the object of brokerage under Article 3, and Article 3 of the Act provides that the object of brokerage is 1.1. land, 2. buildings and other fixtures on land;

3. Other property rights and things prescribed by Presidential Decree are stipulated in Article 3 of the Act. Since buildings referred to in Article 3 of the Act include not only existing buildings but also specific buildings to be constructed in future, it constitutes brokerage of buildings to arrange transactions, such as sale and purchase, after the buyer is selected as to specific Dongs and trees of apartment units or the sales contract is concluded, but the right to move in to the position of being selected as the prospective purchaser upon application on the date of apartment lot does not fall under the object of brokerage referred to in Article 3 of the Act (see, e.g., Supreme Court Decision 2011Da23682, May 26, 2011).

However, even if the buyer was not selected or the sales contract was not concluded for a specific Dong and lake, it is merely a procedure to determine the households whose lot numbers of houses are set for the object of sale in the designated buyers as the object of sale to the specific buyers, and the object is naturally guaranteed for the buyer to purchase the apartment.

If the households that will be the object of sale have objectively existed upon completion of the construction of the entire apartment, and have become possible to provide the object of sale as a real condition, it shall be deemed that the object of sale has been embodied. Therefore, it is reasonable to deem that the Licensed Real Estate Agent Act mediating transactions thereof also constitutes "building" as an object of brokerage (see, e.g., Supreme Court Decision 2011Da62601, Jan. 24, 2013).

2) Determination

In the event that the Plaintiff becomes a member of the instant association after becoming the object of the instant contract and the instant association's new apartment construction project promoted by the instant association is carried out by the Dong and lake lot, it is limited to the position or right to purchase an apartment not exceeding 85§³ exclusive for the future, and it is an unspecific abstract right because the Dong and lake number of the apartment complex are not specified and is not specified. Although it is merely a procedure to determine the units of the said apartment and lake which are scheduled to be sold in the future as the object of the sale to the members, and it is naturally guaranteed that the Plaintiff, the buyer, as a matter of course, does not have to apply for approval of the business plan for the instant new apartment construction project at the time of the instant contract, and thus, it is not possible to provide the object of the instant contract, the object of the instant contract cannot be deemed to be included in the "building," which is an object of brokerage as provided by the Licensed Real Estate Agents Act.

Therefore, even if Defendant B, D, and E participated in the conclusion of the instant contract as alleged by the Plaintiff, it cannot be deemed as a brokerage under the Licensed Real Estate Agent Act. Thus, the Plaintiff’s above assertion based on the premise that Defendant B, D, and E acted as a broker is without merit.

4. Conclusion

The plaintiff's claim against the defendants is without merit, and all of them are dismissed. It is so decided as per Disposition.

Justices Kim Young-young

Judges Park Jong-sung

Judges Lee Jae-chul